Yesterday, the Senate confirmed Neomi Rao, President Trump’s selection to fill the seat on the D.C. Circuit that Brett Kavanaugh left. The vote was 53-46.
Some Republicans, most notably Sen. Josh Hawley, had expressed concern over Rao as a nominee. However, Rao was able to address these concerns to the Senators’ satisfaction. In the end, she received the vote of every Republican member (and no Democrats).
I’m glad Rao was confirmed. However, before everyone moves on, I want to say my final words about the over-the-top reaction by some conservatives, especially the editors of the Wall Street Journal, to Sen. Hawley’s expression of concern over Rao’s nomination.
Some commentators view the Hawley-WSJ dispute as emblematic of a schism in the conservative legal movement (or even as evidence that there is no such movement). The alleged schism is between libertarians/economic conservatives and cultural/social conservatives.
Rao is the darling of libertarians and other economic conservatives. And deservedly so, given her critique of the administrative state.
This group is conservative on economic issues, but some of its adherents are moderate or even liberal on social issues (e.g. abortion and gay marriage). By definition, cultural/social conservatives don’t share this mindset on cultural/social issues. They want judicial nominees who won’t undermine the culture (as they see it) by finding new constitutional rights in the name of privacy, dignity, and liberty.
Notwithstanding the obvious tension between libertarianism and cultural conservatism, there are many conservatives in the pool of those qualified to be judges whose legal views should satisfy both factions. There are many, in other words, who subscribe to these two beliefs: (1) unelected bureaucrats shouldn’t be making public policy through economic regulation and (2) unelected judges shouldn’t be making social policy through constitutional law.
Indeed, it seems to me that subscribing to either one of these propositions makes one considerably more likely than not to subscribe to the other proposition.
However, the convergence is not absolute. One can easily imagine a potential judge who believes that bureaucrats shouldn’t be making public policy through economic regulation, but who are okay with judges finding new constitutional rights that promote privacy, dignity, and/or liberty. The common thread would be the desire to restrain government on both the economic and the social front.
Sen. Hawley was concerned that Neomi Rao might be such a potential judge. He found elements in some of her writing that suggested as much to him. As I understand it, he also heard that Rao has libertarian views on key social issues.
Thus, he raised this concern. For this offense, the Wall Street Journal belittled him and questioned his motives. One leader in the push to confirm President Trump’s nominees even compared Sen. Hawley to the women he defeated, Clare McCaskill, as if raising the question of whether a nominee might be too sympathetic to judicial activism is the same thing as voting against one anti-activist conservative nominee after another.
The viciousness of the attacks on Sen. Hawley merely for questioning the party line on Rao reminds me of Leninism. It also reinforces fear among cultural conservatives that they have no place in the conservative legal movement. They invite the grievance that cultural conservatives aren’t even junior partners in that movement, or in the broader conservative movement itself.
Some libertarians and economic conservatives subscribe to this view. But to flourish electorally, the conservative movement needs cultural conservatives. Moreover, I doubt it would be accurate to describe a movement without them as conservative at all.
I hope those who castigated Josh Hawley for not immediately falling into line on the Rao nomination will behave better next time around.